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Calcutta HC says voluntary sexual acts with minors won’t be POCSO case, acquits rape accused

In a 17 September judgment, Calcutta HC said that the maturity and conduct of the victim with the accused acquires relevance when convicting an accused for penetrative sexual assault.

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New Delhi: Reversing the conviction of a person accused of raping a 16-year-old girl, the Calcutta High Court has asserted that a “voluntary joint act of sexual union” with a minor will not attract an offence under the Protection of Children from Sexual Offences (POCSO) Act 2012.

Noting that the court cannot be blind to “practical realities of life”, in a 17 September judgment, Justice Sabyasachi Bhattacharyya said that the maturity of the victim as well as the victim’s previous conduct with the accused acquires relevance to convict someone for penetrative sexual assault under POCSO.

“In the present case, the previous relation between the victim and the accused and their physical union on several occasions raise a strong presumption of the alleged incriminating act being participatory at both ends, not a unilateral act of the accused,” the judgment added.

It further noted that even though a minor’s consent is not considered valid under Indian law, the fact that a sexual act was committed against the will of the victim had to be established to convict an accused under Section 376(1) of the Indian Penal Code (rape).

Justice Bhattacharyya also said that an accused cannot be incriminated under Section 376 or the POCSO Act for a voluntary sexual act.

Based on these observations, the court reversed the accused’s conviction and observed that he cannot be guilty of penetrative sexual assault since even if the act of penetration took place, it had to be considered a “participatory moment of passion involving the participation of both the victim and the accused”.

The court also noted that the conviction was based on “an erroneous interpretation of the provisions of the POCSO Act as well as the IPC”.


Also read: POCSO court denies bail to man saying child knows ‘good touch bad touch’


‘Cannot interpret law with eyes closed to practical realities’

The Calcutta HC was hearing an appeal filed by Ranjit Rajbanshi, who was convicted under Section 376 of the IPC and Section 4 (penetrative sexual assault) of the POCSO Act in July 2018. He was awarded seven years of rigorous imprisonment and fined Rs 50,000.

Rajbanshi, who was 22 years old at the time of the incident that allegedly took place on 12 August 2017, was accused of raping a 16-year-old girl.

In its judgment, the court noted that according to the definition of a ‘child’ under the POCSO Act, “even a person who is aged 17 years and 364 days would qualify as a child, but her maturity would not be much different from another person, who was just one day older than her, that is, 18 years old”.

Furthermore, the court said that a statute cannot be interpreted with “eyes closed to practical realities and have to be construed in proper perspective”.

It added that age, maturity and other factors also need to be considered while examining an allegation of penetrative sexual assault to convict the accused.


Also read: Woman’s consent can’t be implied from past experience with rape accused, says Delhi court


‘POCSO not a tool of abuse’

For this particular case, Justice Bhattacharyya noted that reports from two doctors who examined the victim did not corroborate her allegations of rape.

He also ruled out use of force on the victim, noting that her medical examination did not reveal any “external injury” on her.

The judge further pointed out that the victim had admitted to one of the doctors that she had a prior relationship with the accused and that her mother had also admitted to a previous relationship between the two of them.

The court noted that according to the victim, her mother called the accused on the day of the incident and asked him to marry her. “It might very well have been that the complaint was lodged merely to create pressure on the accused to marry the victim, despite the serious crime of rape having been allegedly committed upon her,” it said.

According to the high court, the fact that the victim’s family met the accused with a marriage proposal was not compatible with allegations of rape.

“The provisions of the POCSO Act should be given an appropriate construction, for the protection of children and not as a tool of abuse to compel a person to marry another,” said Justice Bhattacharyya.

The high court, therefore, acquitted the accused since there were “several contradictions as well as the existence of several missing links in the chain of events”, Rajbanshi’s conviction could not be based solely on oral evidence of the victim.


Also read: Sexual intercourse is consensual only if it is ‘welcomed’ by a woman: Kerala High Court


 

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